| Gardner v Cason, Inc. |
| 2011 NY Slip Op 01971 [82 AD3d 930] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Maywattie Persaud Gardner, Individually and as Administratrix ofthe Estate of Anthony Lewis Gardner, Deceased, Respondent, v Cason, Inc., et al.,Appellants. |
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In an action, inter alia, to recover damages for wrongful death, etc., the defendants appealfrom an order of the Supreme Court, Kings County (Kramer, J.), entered December 9, 2009,which granted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is denied, with leave to renew after the completion ofdiscovery.
The plaintiff commenced this action, as the administrator of the estate of Anthony LewisGardner (hereinafter the decedent), who was her husband, and individually, to recover damagesarising from a motor vehicle accident that resulted in the death of the decedent. In an affidavitsubmitted in support of the plaintiff's motion for summary judgment on the issue of liability, theplaintiff averred that the decedent was proceeding on his motorcycle in the left lane of thetwo-lane exit ramp from the eastbound Nassau Expressway leading to the Van Wyck Expresswayin Queens. At the same time, a tractor-trailer truck (hereinafter the defendants' truck) owned bythe defendant Cason, Inc., and operated by the defendant William D. Grumbly, was in the rightlane of the two-lane exit ramp adjacent to the decedent. The plaintiff was operating a separatemotor vehicle in the right lane behind the defendants' truck, with one vehicle between theplaintiff's vehicle and the defendants' truck. While making a turn on the exit ramp, thedefendants' truck tipped over into the left lane, spilling its contents onto the roadway, striking thedecedent and his motorcycle.
In opposition to the plaintiff's motion for summary judgment on the issue of liability, thedefendants primarily argued that the motion was premature. The Supreme Court granted themotion. We reverse.
It was premature to award summary judgment at this stage of the case. "This is especially sowhere the opposing party has not had a reasonable opportunity for disclosure prior to the makingof the motion" (Baron v Incorporated Vil. of Freeport, 143 AD2d 792, 793 [1988]). The[*2]plaintiff and the defendant Grumbly submitted, among otherthings, affidavits containing discrepancies pertaining to the circumstances of the accident,including as to the decedent's culpability. Furthermore, no depositions have been conducted,including any depositions of key eyewitnesses identified in the police accident report.Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgmenton the issue of liability with leave to renew after the completion of discovery (see Gruenfeld v City of New Rochelle,72 AD3d 1025 [2010]; Aurora LoanServs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578 [2009]; Martinez v Ashley Apts. Co., LLC, 44AD3d 830 [2007]; Tyme v City ofNew York, 22 AD3d 571 [2005]; see generally CPLR 3212 [f]).
The parties' remaining contentions either are without merit or have been rendered academicin light of our determination. Covello, J.P., Chambers, Lott and Cohen, JJ., concur.